Court Finds for EPA in Upgrade Regulations Case

by Brendan Coyne

June 27, 2005 –
A coalition of fourteen states was rebuffed over attempts to put teeth back into environmental regulations Friday after a Washington, DC appeals court ruled that the states failed to prove that new, more lax regulations violated a 25-year-old law designed to reduce atmospheric pollutants. The ruling does require the Environmental Protection Agency to recast some rules and clarify its record keeping, and it may leave the door open for a more stringent reading of the law should the Agencyâ€™s records prove to be shoddy.

The unanimous ruling by a three-judge panel of the DC US Court of Appeals allows companies that add on to existing plants to skirt regulations aimed at reducing emissions as long as improvements to the plants are not substantial.

Under a 2002 rule change enacted by the Bush administration, energy plants are allowed to avoid installing new pollution controls when upgrading facilities. Under old rules, older power plants that had been allowed to avoid compliance with 1970 Clean Air Act regulations, were required to come into compliance when they expanded or otherwise modernized their facilities. In changing that policy, which was called "New Source Review," the administration argued that technological advances and competition among companies would lead to better air quality than the existing regulations had produced.

The court did not define what it meant by "substantial," outside of noting that "the applicable standard of review allows the EPA considerable latitude to exercise its expertise through reasoned projections."

The Agency will be required to clarify how it requires companies to keep pollution records and may, should the clarification prove inadequate, be required to recast some of the voluntary measures as mandatory, according to the 73-page ruling. Additionally, the court found that allowing plants to reduce one form of emission while increasing another, as the 2002 EPA regulations did, violates the spirit and letter of the Clean Air Act.

New York State was the lead plaintiff in the suit. The other petitioners were; New Jersey, Pennsylvania, Wisconsin, California, Delaware, Connecticut, New Hampshire, Illinois, Maine, Rhode Island, Vermont, Maryland, Massachusetts and the District of Columbia.